Doe v. Sex Offender Registry Bd.

178 N.E.3d 899 (Table)

John DOE, Sex Offender Registry Board No. 526197

v.SEX OFFENDER REGISTRY BOARD.

20-P-998

Appeals Court of Massachusetts.

Entered: November 5, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level three sex offender. On appeal, he contends that the hearing examiner erred in (1) applying regulatory factor 2 (repetitive and compulsive behavior), (2) failing to specify the weight given to certain regulatory factors, and (3) failing to make explicit findings that a public safety interest is served by Internet dissemination of his registry information. He further contends that active public dissemination of his registry information violates his constitutional rights. We affirm.

Background. On February 3, 2009, Doe, then twenty-four years old, was charged with two counts of attempted murder, two counts of rape, five counts of assault and battery by means of a dangerous weapon,² four counts of assault and battery, and one count each of aggravated assault, threat to commit a crime, and larceny over $250. The victim (victim 1) of these charges was a twenty-four year old woman with whom Doe was in a dating relationship.

The police interviewed victim 1, and, during the interview, she provided them a journal she kept that memorialized several incidents of domestic abuse and rape committed upon her by Doe.³ She reported to the police that Doe raped her on two different occasions -- once in November 2008 and once in December 2008. She stated that, in November 2008, Doe threw her on a bed, strangled her, pulled down her pants, and told her that if she screamed, he would "beat the shit out of her." Even still, victim 1 did scream and attempted to physically resist the attack, but Doe effectuated the rape and penetrated her vagina with his penis. In December 2008, Doe again threw victim 1 on the bed, and pulled off her clothes while she repeatedly told him "no." Doe then threatened to kill victim 1, raped her, and choked her. Victim 1 reported that Doe physically assaulted her on numerous occasions between December 1, 2008, and January 29, 2009. On the day she reported these incidents to the police, victim 1 obtained an abuse prevention order against Doe.

On March 26, 2009, a probable cause hearing was held on the charges against Doe, and victim 1 invoked her Fifth Amendment privilege and refused to testify. The sixteen charges against Doe were accordingly dismissed for lack of probable cause.⁴ The hearing examiner, nevertheless, found that, based on the police reports, victim 1's journal entries, and victim 1's affidavit in support of the abuse prevention order, there was sufficient evidence that Doe physically abused and raped victim 1 as she alleged.

Approximately nine years later, on February 2, 2018, Doe pleaded guilty to six counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. The victims of these crimes -- the governing sex offenses -- were Doe's two daughters. The younger daughter (victim 2) was four years old when she disclosed the sexual abuse, and the older daughter (victim 3) was six years old. Five of the six counts to which Doe pleaded were amended from the charge of aggravated rape. Despite the amendments, the hearing examiner found that there was substantial reliable evidence -- specifically, detailed statements by the two girls to authorities, a day care provider, and their grandmother -- to conclude that Doe vaginally and anally raped both daughters, and orally raped victim 2.

The hearing examiner applied several high-risk and risk-elevating factors, pursuant to 803 Code Mass. Regs. § 1.33 (2016). He gave "the most weight" to high-risk factor 2 (repetitive and compulsive behavior) and "greater weight" to high-risk factor 3 (adult offender with child victim). The hearing examiner also applied risk-elevating factor 7 (extrafamilial victim), factor 8 (weapons, violence, or infliction of bodily injury), factor 10 (contact with criminal justice system), factor 11 (violence unrelated to sexual assaults), factor 13 (noncompliance with community supervision), factor 18 (extravulnerable victims), factor 21 (diverse victim type), and factor 22 (number of victims), without denoting the level of weight given. The hearing examiner gave "consideration" to factor 15 (hostility toward women), and applied "with increased weight in terms of dangerousness" factor 19 (level of physical contact). The hearing examiner additionally gave "moderate weight" to risk-mitigating factor 28 (supervision by probation). See 803 Code Mass. Regs. § 1.33.

As stated, the hearing examiner ultimately classified Doe as a level three sex offender. Doe then filed a complaint in the Superior Court for judicial review of the hearing examiner's decision. On cross motions for judgment on the pleadings, a Superior Court judge denied Doe's motion and affirmed his classification. Doe appealed.

Discussion. 1. Application of factor 2 (repetitive and compulsive behavior). Factor 2(a), applicable to adult males, provides in full:

"Repetitive and compulsive behavior is associated with a high risk of reoffense. Factor 2 is applied when a sex offender engages in two or more separate episodes of sexual misconduct. To be considered separate episodes there must be time or opportunity, between the episodes, for the offender to reflect on the wrongfulness of his conduct.

"The Board may give increased weight to offenders who have been discovered and confronted (by someone other than the victim) or investigated by an authority for sexual misconduct and, nonetheless, commit a subsequent act of sexual misconduct. The most weight shall be given to an offender who engages in sexual misconduct after having been charged with or convicted of a sex offense."

803 Code Mass. Regs. § 1.33(2)(a). The second and third sentences of factor 2, which address multiple episodes of unconfronted or uncharged sexual misconduct, have been declared invalid by a Middlesex Superior Court judge to the extent, in pertinent part, that they attribute a high risk of reoffense without regard to whether the offender was discovered, confronted, or investigated between episodes. See Doe, Sex Offender Registry Bd. No. 22188 vs. Sex Offender Registry Bd., Middlesex Sup. Ct., No. 20-1130-B, slip op. at 1, 9-22 (Apr. 16, 2021) (Wilkins, J.). The reasoning of the judge's decision in that case was that there is insufficient scientific support that an offender poses a higher risk of reoffending when he has not been confronted, charged with, or convicted of a sex offense prior to committing additional sex offenses. See id. at 11-17. SORB has not appealed that decision and has acknowledged to this court in other cases that the Superior Court memorandum and order in that case is binding on it. Indeed, other panels of this court have treated the decision as binding. See Doe, Sex Offender Registry Bd. No. 372711 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1104 (2021) ; Doe, Sex Offender Registry Bd. No. 526277 v. Sex Offender Registry Bd., 100 Mass. App. Ct. 1102 (2021) ; Doe, Sex Offender Registry Bd. No. 2453 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 1132 (2021). Because the plaintiffs in those cases were not confronted, charged, or apprehended between sex offenses, each of those panels considered whether, without the application of factor 2, the classifications of the plaintiffs were supported by substantial evidence. Lacking confidence that factor 2 did not materially affect the outcome in those cases, the panels remanded each of those matters to the hearing examiner.

Doe argues that his case dictates the same result. However, here, Doe was charged with twice raping victim 1 prior to committing multiple sex offenses against victim 2 and victim 3. While an opportunity for reflection between sex offenses alone does not scientifically suggest that an offender poses a higher risk of reoffense, engaging in sexual misconduct after being charged with a sexual offense does. See Doe, Sex Offender Registry Bd. No. 22188 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 743 & n.8 (2019) (Doe No. 22188 ) (citing testimony of Dr. R. Karl Hanson, "an authority on whose research SORB relies"). Indeed, the last sentence of factor 2, which has not been invalidated, states that "[t]he most weight shall be given to an offender who engages in sexual misconduct after having been charged." 803 Code Mass. Regs. § 1.33(2)(a). That is precisely what the hearing examiner did here.

Doe claims that the hearing examiner improperly considered the charges against victim 1 in applying factor 2 because those charges were dismissed upon a finding of no probable cause. The claim is unavailing. A conviction is not required for the application of factor 2. See 803 Code Mass. Regs. § 1.33(2)(a). The fact that Doe was charged and reoffended is sufficient because, as Dr. Hanson previously testified, it suggests that the criminal justice system does not inhibit Doe's conduct. Doe No. 22188, 96 Mass. App. Ct. at 743 n.8. Moreover, hearing examiners are permitted to consider conduct that, even if charged, did not ultimately result in a conviction. See Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 79 (2015) (hearing examiner permitted to consider police report, despite fact that plaintiff was acquitted of conduct at criminal trial). We therefore discern no error in the hearing examiner's application of factor 2.⁵

2. Failure to ascribe weight to certain factors. Doe next argues that the hearing examiner is required to specify the level of weight given to each regulatory factor, and without doing so, we are prevented from conducting a meaningful review of Doe's level three classification.⁶ We are not persuaded.

A hearing examiner has broad discretion to consider how much weight to ascribe each factor,...